The Jinx and the Jury

"There it is. You're caught. You're right, of course. But you can't imagine. Arrest him. I don't know what's in the house. Oh, I want this. What a disaster. He was right. I was wrong. And the burping. I'm having difficulty with the question. What the hell did I do? Killed them all, of course." —Robert Durst, The Jinx

Where Bob Durst is concerned, anything can happen. Especially in court. That makes predicting the fate of Durst’s now infamous self-Q&A in an eventual, yet hypothetical murder trial rather tricky. Of course, that hasn’t stopped anyone from trying.

Over at Bloomberg View, Harvard Law’s Noah Feldman argues the statement will be inadmissible in court, will “never reach a jury.” Meanwhile, the Los Angeles Times published a Q&A citing several academic experts who say it will be admissible—and Vice interviewed criminal defense attorneys who agree. They’re joined in that opinion by entertainment and media lawyer Mathew Rosengart writing for the Hollywood Reporter. CNN helpfully covered all bases.

Here’s one more prediction: Feldman’s right, but admissibility doesn’t matter nearly as much as anyone thinks, because the statement has probably already reached the jury. The real question is, what does that mean for Durst?

The first bar any piece of evidence must pass to be admitted in a trial is relevance, defined as whether the evidence makes a fact more or less likely. It’s a pretty low bar, one that the audio recording of Durst potentially admitting to murder should pass. Next come harder questions.

Are Durst’s bathroom mutterings hearsay? Not likely. In California, an out-of-court statement offered against the declarant of that statement in an action to which he is a party is not inadmissible as hearsay. A criminal defendant’s statement may be used against him so long as the statement was made voluntarily. As Durst was talking to himself in the bathroom of his own volition while wearing a live mic by choice, the voluntariness of the statement seems nigh on incontestable.

Admissibility doesn’t matter nearly as much as anyone thinks, because Robert Durst’s purported confession on The Jinx has probably already reached the jury.

Could Durst’s attorneys argue that the filmmakers were acting as government agents and thus can be found to have violated Durst’s Fourth Amendment rights, making his statement inadmissible? Sure, and they probably should, as Feldman suggests. Will they convince the judge? Probably not, Feldman himself concedes.

Ultimately, the audio recording probably will not be admitted—not because it is inadmissible as hearsay or because filmmaker Andrew Jarecki was acting on behalf of the Los Angeles Police Department but because a California judge may exclude otherwise admissible evidence if that evidence is more prejudicial than it is probative. Durst’s statement, as Feldman points out, “would create irreversible prejudice in the mind of the jury—without a reliable basis for proving the truth.”

Of course, Feldman turns to Shakespearean soliloquies for support when he need only have reached for the remote. Elsewhere in the finale of The Jinx, Durst voices his stream of consciousness as a series of undifferentiated statements, transitioning from a fact or an opinion of his own to what he imagines another person might believe without marking any distinction between the two. Consider his response to the question of whether it made sense that others suspected him of murdering Susan Berman. “Oh, sure,” Durst agrees. Almost staccato, he elaborates immediately: “She was my spokesman. All the sudden she’s dead.” “I shut her up,” he concludes, with little change in inflection and without a pause.

Even on camera, aware he is being recorded, Durst is barely attentive to the need to distinguish between the organic statements he makes and the potentially damning opinions of others he parrots. That means that even if the risk of unfair prejudice is low, the probative value of the audio recording of Durst talking to himself may be seen as slighter yet.

Interesting though the debate over admissibility may be—to law nerds and legal junkies, at least—it's the obstacle that ruling the confession inadmissible would create for jury selection that could be most fascinating. That’s because prosecutors will eventually have to find 12 impartial Los Angelenos (and a few alternates) who are either unaware of or able to completely discount Durst’s self-directed bathroom mumblings.

In other recent, high-profile cases in which bias or prior knowledge could create large-scale problems for jury selection, courts have compensated by summoning an unusually wide pool—from the 3,000 potential jurors summoned in the Boston trial of Dzhokar Tsarnaev to the 9,000 called in Aurora, Colorado, in the James Holmes case.

Yet even in a pool of thousands it may be hard to find a prospective juror in Los Angeles who’s qualified to serve but has no knowledge of The Jinx or Durst’s purported confession. HBO aired Durst’s “confession.” It’s been incorporated into and paraphrased within newscasts, appeared in the headlines of most major newspapers, and widely disseminated on social media as well as by word of mouth.

Failing the discovery of some reservoir of qualified jurors who were not exposed to media coverage, the test becomes whether a potential juror can credibly claim to be impartial despite having prior knowledge of the case and would-be confession. That’s always a high bar in high-profile trials, but it may be downright stratospheric in Durst’s case.

It's not the extent of publicity that makes Durst's case particularly problematic. Pretrial publicity is not in and of itself a problem. As Justice Ruth Bader Ginsburg wrote in Skilling v. United States in 2010, “prominence does not necessarily produce prejudice, and juror impartiality does not require ignorance.”

The problem Durst faces if he succeeds in getting the judge to exclude his “confession” lies with the content of the pretrial publicity. Prospective jurors may have heard an audio recording of Durst himself making an apparent confession of guilt to the charge for which he will be tried, a rather more sensational and damning form of prior knowledge to discount than most.

How will the court and parties gauge whether a juror has been biased by hearing Durst’s purported confession? They can only ask. Can prospective jurors themselves truly appreciate how they may have been influenced by listening to what appears to be a confession? Maybe, but maybe not. As Justice Sandra Day O’Connor noted in 1982 in a concurrence, “[d]etermining whether a juror is biased or has prejudged a case is difficult, partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it.”

Robert Durst’s trial marks the culmination of his well-documented yet inexplicable personal choices, but also one of the greatest tests yet of the American justice system’s ability to ensure a fair trial.

So what can Durst do? His team can petition for a change of venue, the traditional solution to the risk that pretrial publicity or bias could jeopardize a defendant’s shot at a fair trial. Durst may have a shot at winning a change of venue motion. California generally permits change of venue in criminal cases from any county where pretrial publicity or bias may prohibit a defendant from receiving a fair trial. It seems likely that the odds of finding impartial jurors will increase if the trial moves to another county. All the same, a judge may be resistant to granting a motion based on pretrial publicity alone. As media has become more accessible, more pervasive, and more difficult to escape by geographical relocation, many courts have begun rejecting change of venue as a solution to pretrial publicity.

Durst’s attorneys can also act strategically during the jury selection process to maximize the ways in which bias can be identified. The defense can propose questions for the court to use in its initial examination of prospective jurors, before counsel get the chance to question them, and ask the judge to approve a written questionnaire to elicit additional information.

Both sides can challenge any would-be juror for cause at any point before the jury is sworn. The three types of challenges for cause that can be brought against individual jurors are general disqualification, meaning the juror does not meet statutory requirements or does not have the capacity to serve; actual bias, based on the juror’s “state of mind” regarding the case or either party; and implied bias, a sprawling category that covers everything from having an interest in the proceeding to being related to a party to holding an “unqualified opinion or belief as to the merits of the action” based on prior knowledge of some or all of the facts.

In any criminal trial in California for an offense punishable by death or life in prison, prosecutors and defense each also get 20 peremptory challenges, meaning nearly two dozen chances to veto a prospective juror without giving a reason. The only restriction placed on the use of peremptory challenges is that they may not be used “to remove a prospective juror on the basis of an assumption that the prospective juror is biased merely because of his or her race, color, religion, sex, national origin, sexual orientation, or similar grounds.”

To maximize the utility of any proposed voir dire questions and the efficiency of their peremptory challenges, the defense can and likely will enlist the aid of a jury consultant. Such experts try to predict and identify unconscious bias tied to actions or characteristics that constitute permissible grounds for a peremptory challenge, such as education, affect, body language, dress, habits, interests, or background, for example.

Even if Durst wins every procedural battle ahead in court—gets the admission excluded, the venue changed, and every actually and potentially biased prospective juror dismissed—there’s no guarantee he can win the war. Durst’s confession is out there, perhaps beyond any party’s ability to retract or restrict or forget. His trial marks the culmination of his well-documented yet inexplicable personal choices, but also one of the greatest tests yet of the American justice system’s ability to ensure a fair trial.

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